Alternatives to Filing a Lawsuit in California Personal Injury Claims

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Some California personal injury claims belong in a court, with lawyers, judges and juries present to ensure that the parties are treated and compensated fairly. However, the justice system is not perfect, not always fair and it certainly comes with its share of risks. There are other ways to handle your injury claim. For example, although it’s not recommended for serious injuries, you may choose to simply negotiate and settle with the insurance company on your own. Or, you can file a lawsuit but choose to participate in mediation or to settle without the risks that can come with a jury trial.

Negotiating Settlement of a Personal Injury Claim

Insurance companies are always willing to negotiate injury settlements directly with claimants, but if you choose to negotiate on your own, without the assistance of an attorney, you need to do your homework and keep detailed records. Few seeking compensation from insurers are aware that the primary goal of an insurance company is to avoid a full payout to victims of personal injury in California. The best way to avoid being shorted is to do your research in advance and know what your case is worth so that you don’t accept an offer that is less than you deserve.

To get an idea of what your case is worth, it’s helpful to understand the details of how you will be compensated for a personal injury claim in California. Having an estimate of what you might receive from a jury in the event your case goes to court will give you some bargaining power with the insurance company. Don’t begin negotiating with the insurance company and don’t sign anything until you have completed your medical treatment.

When you have completely recovered from your injury, or have recovered to the greatest extent that you will, calculate the total cost of your medical treatment. Add the cost of your medical treatment to any incidental expenses such as insurance co-pays. You are also entitled to pain and suffering damages. Pain and suffering is usually a multiple of your medical expenses. Once you have added your medical expenses and pain and suffering damages together you should add any amount of lost income plus any property damage amounts. The resulting number will be a very rough estimate of what your case might be worth, but it is a good place to start.

If your case is complicated, if your medical bills are large, or if you have permanent injuries or loss of bodily function, you should seriously consider hiring a California personal injury law firm to get help from a lawyer who specializes in California personal injury law. These attorneys routinely calculate damages and understand the factors that may increase or decrease the value of personal injury cases in California, so they are well equipped to help you make a reasonable calculation and negotiate with the insurance company.

Alternative Dispute Resolution in Personal Injury Cases

California law does not require you to file a case in order to come to a real settlement for your personal injury claim. To avoid excessive lawsuits and streamline the legal process, California offers four different forms of alternative dispute resolution, or ADR, and these are mediation, binding arbitration, non-binding arbitration, and the settlement conference. Some of these are free of charge and don’t actually require representation.

California Personal Injury Mediation

Mediation is the first ADR option for California personal injury claims, and many counties in California participate in a no-fee mediation program. During the mediation, both sides are asked to explain their position to a neutral third person. The third person then helps with the negotiation process and to work out a solution for both sides. In order for the mediation to be a success, both sides must agree to the solution. While a lawyer is not required for personal injury mediation, it is recommended for the injured party since the opposing party will most likely have a personal injury defense attorney.

Arbitration of Personal Injury Cases

California also offers both binding and non-binding arbitration as a means for alternative dispute resolution. Arbitration is a form of mini-trial that is controlled by an arbitrator. This form of ADR is usually best suited for parties represented by attorneys because evidence and arguments are presented. At the end of the arbitration, the arbitrator decides on an award. For most personal injury cases, the arbitration is binding when ordered by the court; this means that the arbitration should be taken as seriously as a real trial with regard to preparation and presentation of evidence.

The Settlement Conference in California Personal Injury Claims

Another option for plaintiffs in personal injury cases in California is the settlement conference. Typically held around the time of your scheduled personal injury trial, the settlement conference offers a final means for a neutral adviser, known as a settlement officer, to evaluate your case and offer assistance in negotiating a settlement. If you fail to come to an agreement at the settlement conference, you may be headed to trial, but don’t give up trying even after the conference. Sometimes after the settlement conference, and after considering all of the evidence, arguments, and comments of the settlement officer, one party may decide that a trial is just not worth it. You are still free to make an offer after the conference, and the other party may offer an alternative as well.

When using either direct settlement or ADR methods for your personal injury case, there are some important things you should remember. First, go in with a good idea of what your case is worth, but be willing to listen to the neutral party and adjust your figures accordingly. Your mediator or settlement officer will see facets of your case that you may have missed and will be able to put your case in perspective. Listen and be receptive. Also, be well prepared with arguments to back up your claims about what you believe your case is worth. Resolving your case without a trial can save you money on costs and fees, and can also eliminate the risk of receiving nothing. Juries are unpredictable; be willing to give up a little in exchange for not having to face a jury.

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